Jack Goldsmith on the cyber arms race

Today’s Washington Post contains an editorial from Jack Goldsmith, head of the U.S. Justice Department’s Office of Legal Counsel for several months in 2003-2004. It’s a striking piece, arguing that cyber-norms can’t come about until the U.S. discloses or curbs its offensive cyber-activities.

Beneath the text seems to be a concern that animates Goldsmith’s book about his time in the OLC, “The Terror Presidency.” While sympathetic to the Bush Administration, Goldsmith’s time in the OLC saw him concerned with the legal cover that a potentially limitless war gave to executive seizure of power by fiat, rather than via “softer measures.” To quote from his article on the Obama Administration’s counterterrorism strategy: “Packaging, argumentation, symbol, and rhetoric, it turns out, are vitally important to the legitimacy of terrorism policies.” One can’t help but wonder whether some of the same concerns around power aren’t evident here.

More recently, Goldsmith co-authored a book which attempts to dismantle claims that the Internet will undermine government power, among other things. But doesn’t the current Google-China dispute show that that the question of norms actually isn’t being actively pursued by governments, but by non-governmental actors? Goldsmith highlights a possible hypocrisy in Secretary of State Clinton’s call for “norms of behavior among states.” But he neglects to note that this speech was prompted – or at least pre-empted – by actions taken by Google.

Certainly, patterns of similar cyberattacks had occurred previously, without a clear response on the part of the U.S. government (which has, as Goldsmith notes, provided tacit support for “hacktivism” in other circumstances). The vacuum of government action to promote norms may well lead to a situation in which norms originate from the private sector – either consciously, or through business decisions created by an environment of cyber-insecurity. To answer the question posed by the title of Goldsmith’s book, “Who Controls the Internet?” … well, I’m still not sure.